- 1 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 22181 OF 2019 (GM-CPC) C/W WRIT PETITION NO. 52439 OF 2019 (GM-CPC) IN WP No. 22181/2019 BETWEEN: SRI. C.K. NAGARAJ, S/O LATE SRI. C.V. KANNAPPA, AGED ABOUT 56 YEARS, R/O C/O SMT. RATHNAMMA, NO.2, 2ND FLOOR, 2ND CROSS, 'B' MAIN ROAD, GANDI GRAMA, MARUTHI BADAVANE, SRI RAMPURA POST, BENGALURU - 560 021. …PETITIONER (BY SRI. A. MADHUSUDHANA RAO, ADVOCATE) AND: 1. SRI. H.M. JAGADISH GOWDA, S/O LATE SRI. MALLEGOWDA, AGED ABOUT 54 YEARS, AGRICULTURIST, R/O SUMITHRA NILAYA, 4TH CROSS, ALLAMMA PRABHU MARG, KALYAN NAGAR, BYPASS ROAD, CHIKKAMAGALURU CITY - 577 101. Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 2. SRI. PRASANNA NAIKA, S/O RAMA NAIKA, AGED ABOUT 49 YEARS, AGRICULTURIST, R/O 4TH CROSS, ALLAMMA PRABHU MARG, KALYAN NAGAR, BYPASS ROAD, CHIKKAMAGALURU CITY. …RESPONDENTS (BY SRI. K.S. GANESHA, ADVOCATE FOR R1; MS. AISHWARYA HEGDE, ADVOCATE FOR SRI. R. GURURAJ, ADVOCATE FOR R2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 26.02.2019 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU IN O.S.NO.174/2014, AS PER ANNEXURE-L AND ETC., IN WP NO. 52439/2019 BETWEEN: SRI. PRASANNA NAIKA, S/O RAMA NAIKA, AGED ABOUT 45 YEARS, AGRICULTURIST, SUMITHA NILAYA, 4TH CROSS, ALLAMMA PRABHU MARG, KALYAN NAGAR, BYPASS ROAD, CHIKMAGALURU CITY - 577 161. ...PETITIONER (BY MS. AISHWARYA HEGDE, ADVOCATE FOR SRI. R. GURURAJ, ADVOCATE) - 3 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 AND: 1. SRI. C.K. NAGARAJ, S/O LATE SRI. C.V. KANNAPPA, AGED ABOUT 56 YEARS, R/O C/O RATHNAMMA, NO.2, 2ND FLOOR, 2ND CROSS, 'B' MAIN ROAD, GANDHI GRAMA, MARUTHI BADAVANE, SRI RAMAPURA POST, BENGALURU - 560 021. 2. SRI. H.M. JAGADISH GOWDA, S/O LATE SRI. MALLE GOWDA, AGED ABOUT 49 YEARS, AGRICULTURIST R/O 4TH CROSS, ALLAMA PRABHU MARG, KALYAN NAGAR, BYPASS ROAD, CHIKKAMAGALURU CITY - 577 101 ...RESPONDENTS (BY SRI. A. MADHUSUDHANA RAO, ADVOCATE FOR R1; SRI. K.S. GANESHA, ADVOCATE FOR R2) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.2.2019 IN O.S.NO.174/2014 ON THE FILE OF SENIOR CIVIL JUDGE AND CJM AT CHIKMAGALUR ACCEPTING THE COMMISSIONERS REPORT AS PER ANNEXURE-N AND ETC., - 4 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI ORAL ORDER Aggrieved by the order passed on the commissioner's report dated 26.02.2019 in OS No.1741/2014 by the I Additional Senior Civil Judge, Chikkamgaluru, both the plaintiff and defendant No.2 are before this Court. 2. The plaintiff has filed W.P.No.22181/2019 and the defendant No.2 has filed Writ Petition No.52439/2019. The plaintiff had filed a suit seeking declaration and for recovery of possession of the encroached portion by defendant Nos.1 and 2. According to the plaintiff, he is the absolute owner of an extent of site measuring 40/60 and it is his case that both the defendants have encroached the land and made constructions. The Court had appointed the Court Commissioner and the Court Commission has placed his report. As per the Court Commissioner's report, both - 5 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 defendant Nos.1 and 2 have encroached 10 ft each. It is the case of the plaintiff that in the cross-examination, the Court Commission has stated that in the entire extent of land which the plaintiff possesses, there are constructions and it is the case of the plaintiff that he has not made any construction. It is a case of the defendant that he has measured the property contrary to the memo of directions issued by the Court and in the cross-examination also, he has taken inconsistent stands and there is no basis for the Court Commissioner to arrive at such conclusion. 3. The trial Court by order impugned had accepted the Court Commissioner's report and the objections raised by both the parties, the plaintiff and defendant No.2 were not considered and the Court observes that when he has measured the land and has given a report that the owners of site number 214 & 216 have encroached 10 feet each in Site No.215 and merely because the Court Commissioner has mentioned the extent of property encroached by the defendant and merely because the Court Commissioner - 6 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 has opposed about encroachment made by the defendant and submit the report. When the defendants cannot contend that the report of the Court Commissioner is not in accordance with law, the Court has observed that the Commissioner has measured and demarcated the plaint schedule properties and prepared the sketch vide exhibit C4 as per the order passed by the Court. Nothing is elicited in the evidence of CW.1 to show that the Court Commissioner has committed an irregularity or illegality. In the absence of such material, the Court has to accept the commissioner's report and accordingly, accepted the report by the order impugned. 4. Learned counsel appearing for the plaintiff as well as defendant No.2 have their own objections to the commissioner's report but ultimately both of them have argued on the similar lines and submits that the commissioner's report has to be rejected and afresh Court Commissioner shall be appointed and fresh survey to be conducted and report has to be placed before the Court. - 7 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 5. Learned counsel appearing for both the sides have argued on the similar lines. 6. Having heard the learned counsel on either side, perused the material on record. The facts of the case are very clear and the plaintiff, defendant No.1 and defendant No.2 are claiming their right basing on a registered sale deed and those properties are situated in a approved layout for determining the fact what is the encroachment. The Surveyor who has expertise to deal with that and basing on the surveyors report, basing on the layout, basing on the sale deeds of the respective parties, there cannot be such an ambiguity. The order of the Court that the Commissioner's cross-examination and the statement that is made by him in the cross examination is unsustainable. When the Court Commissioner has surveyed the land and has placed the report before the Court, the parties have every right to cross-examine him on the commissioner's report and his examination should be on the similar lines and in this - 8 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 case, it appears that the evidence that is given by him is contrary to the report and it is a case of the defendants that he has not surveyed the land as per the memo of instructions. Considering all these aspects, this Court is of the view that the orders impugned need to be set aside and the matter should be remanded back to the court. Accordingly, the court is passing the following: ORDER 1. The order dated 26.02.2019 passed in O.S.No.174/2014 by the I Addl. Senior Civil Judge, Chikkamagaluru is set aside and the writ petitions are remanded to the Court. 2. The Court shall appoint a Surveyor and shall issue specific instructions with regard to the nature of the controversy and what should be measured by the Commissioner and to put a queites to the litigation. 3. This is a suit of 2014 and the arguments are already advanced by the parties, the Court after looking at the Commissioner's report and after giving a reasonable opportunity to the parties, shall dispose of the case from the date of the - 9 - NC: 2025:KHC:2420 WP No. 22181 of 2019 C/W WP No. 52439 of 2019 commissioner's report within a period of 6 months. 4. Accordingly, the Writ Petitions are disposed of. 5. All IAs., in these Writ Petitions shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE KA List No.: 1 Sl No.: 7 CT: BHK